Hrdavec v State of New South Wales

1. [1]

   THE COURT: On the evening of 21 June 2015 a young woman was sexually assaulted in the backyard of a home in Blacktown. Four men and two women were present and had been drinking during the evening. One of the men was the appellant, Valentino Hrdavec. Ten days later he was arrested and charged with two offences, being aggravated sexual assault in company and aggravated indecent assault. The matter did not proceed to trial, the charges being formally withdrawn on 11 December 2015.

2. [2]

   The appellant brought proceedings against the State in the Common Law Division seeking damages for unlawful arrest and imprisonment, and malicious prosecution. After a trial of 9 days, the hearing of which extended over 18 months, Walton J dismissed the proceedings. [1] By a notice of appeal filed on 17 August 2021 Mr Hrdavec (the appellant) sought to set aside the judgment, obtain a judgment against the State in the amount of $8,000 for false imprisonment and a further amount by way of damages for malicious prosecution.

3. [3]

   The notice of appeal included a certificate under r 51.22 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the amount in issue exceeded the amount of $100,000, being the threshold under which leave to appeal is required pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW). There was no affidavit filed in support of that claim, which is not self-evidently correct. The trial judge made a contingent assessment of damages in an amount of $8,000 for false imprisonment (which the appellant did not challenge) and $25,000 for malicious prosecution, which was challenged as inadequate, but limited evidence supporting that challenge was before the Court. However, no point was taken by the State as to the competency of the appeal and, to the extent necessary, it is appropriate to grant the appellant such leave.

Overview of events

1. [4]

   That the victim was sexually assaulted was not in dispute: the issue was whether the appellant was involved in the assaults.

2. [5]

   The assaults took place at the home of Loyd Bandao. Apart from the victim, the other woman present, Patricia Tejada, was Mr Bandao’s girlfriend. The other men present were James Bruce (a cousin of Mr Bandao) and “BJ” Alcazar (a close friend of Mr Bandao) and the appellant. Ms Tejada, having drunk a significant quantity of alcohol, went outside the house, to a small outhouse with a toilet, where she vomited. The victim went to her assistance. Shortly thereafter, the four men came out of the house. Ms Tejada was brought out of the toilet and lay on the grass outside, while the victim was assaulted in the toilet.

3. [6]

   Later that evening the victim returned home and, at 11pm, contacted police. At about 4am the following morning (22 June) officers attended at Mr Bandao’s residence. An hour later Detective Sergeant Pietruszka was informed of the complaint and the investigation. From then on, he was in charge of the investigation. [2] Sergeant Pietruszka was responsible for the decision to arrest the appellant and charge him. He was also responsible for the prosecution, at least until a brief was provided to the Director of Public Prosecutions. The appellant’s case at trial was that from 1 July 2015 (the date of the appellant’s arrest) up to 11 December 2015 (when the charges were withdrawn) Sergeant Pietruszka was in charge, was the relevant decision-maker and therefore the prosecutor. The evidence focused upon the information available to him at various times and whether he honestly and reasonably believed that the prosecution of the appellant should be maintained.

4. [7]

   The appellant’s case may be addressed by reference to four periods, namely (i) from the time of the assaults on the night of 21 June 2015 to 11.30pm on 1 July 2015 when he was arrested; (ii) from his arrest to approximately 2am on the following morning (2 July 2015) when he was charged (and during which period he was interviewed by Sergeant Pietruszka); (iii) from 2 July until 31 July 2015 when the appellant obtained bail; and (iv) from 31 July 2015 to 11 December 2015 when the charges against the appellant were withdrawn. As will be noted, none of the grounds of appeal relied on any activity after 31 July, so the fourth period may be disregarded.

5. [8]

   Two important events took place in the third period. One was the taking by Sergeant Pietruszka of a further statement from the victim on 3 July 2015, in the course of which she said that the appellant did not take part in the sexual assault. The second was the provision of a brief to the Director of Public Prosecutions on or about 7 July 2015. The State submitted that thereafter the Director was the party responsible for prosecuting the proceedings and not Sergeant Pietruszka. The decision to terminate the proceedings against the appellant was taken (with Sergeant Pietruszka’s agreement) on or about 6 October 2015.

Issues on appeal

1. [9]

   The appellant did not challenge any aspect of the judge’s articulation of the relevant legal principles. Rather, his challenges related to findings of fact, as to the knowledge, beliefs and motivation of Sergeant Pietruszka. The factual challenges may be divided between the first three periods identified above. Thus, with respect to the time of the appellant’s arrest, ground 1 alleged error in the judge’s findings that:

2. [10]

   With respect to the second period, four findings were challenged, namely that:

3. [11]

   With respect to the third period, two findings were challenged namely that:

4. [12]

   Two other findings challenged in ground 1, namely (i) and (j), related to matters relevant to the assessment of damages, as did ground 2 which alleged that the provisional assessment of damages for malicious prosecution was manifestly inadequate. Prior to the hearing of the appeal the appellant filed a notice of motion seeking to call further evidence in relation to the assessment of damages for malicious prosecution. Following discussion at the commencement of the hearing, that material was not pressed, the appellant accepting that, in the event he was successful in establishing liability for malicious prosecution, and in challenging the provisional assessment, it would be necessary for the matter to be remitted to the trial court to redetermine damages.

5. [13]

   For the reasons explained below, the challenge to the liability finding should be rejected. In that circumstance it will be neither necessary to address grounds relating to damages, nor appropriate because that exercise would turn on different findings as to the prosecutor’s state of mind which cannot be identified hypothetically.

Legal principles

1. [14]

   It is necessary to state succinctly the uncontroversial principles applicable to claims for false imprisonment and malicious prosecution. This may be done briefly because the relevant elements of the causes of action were not in dispute.

2. [15]

   The challenge to the lawfulness of the arrest was pleaded as a wrongful arrest and false imprisonment. The wrongfulness of the conduct was sought to be established by an absence of justification under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“Law Enforcement Act”). Section 99 confers power on a police officer to arrest a person without a warrant if the officer “suspects on reasonable grounds that the person … has committed an offence” and the officer “is satisfied that the arrest is reasonably necessary” for a specified purpose. The challenge to the arrest in the present case turned on the first limb, namely whether the officers who arrested the appellant in fact suspected on reasonable grounds that he had committed an offence.

3. [16]

   It has been pointed out on many occasions that the long-standing test of a suspicion based on reasonable grounds involves both a subjective and an objective element. A suspicion is something less than a belief that the person has committed an offence. [3] If challenged, the officer must be able to demonstrate some factual basis for holding the suspicion, being a basis which a reasonable person would accept as providing support for the suspicion, whether or not such a person would necessarily draw the relevant inference.

4. [17]

   In State of New South Wales v Robinson [4] the High Court accepted that the purpose of an arrest must be to bring the person before an authorised officer as soon as practicable to be dealt with according to law, an obligation found in s 99(3). The State had submitted that, because that purpose involved the more demanding test of reasonable and probable cause, that is, an honest belief in the guilt of the accused based on reasonable grounds, [5] before a charge could be laid, it was not consistent with permitting arrest based on suspicion. Therefore the officer must be entitled to arrest without having an intention to charge the person with an offence. That argument was rejected by the majority in Robinson in the following terms: [6]

5. [18]

   The Law Enforcement Act provides for a person who has been arrested to be detained for an “investigation period”, during which the officer may investigate whether the person committed the offence for which he or she was arrested: s 114(2). If the officer is unable to form the belief sufficient for the laying of a charge the arrest may be discontinued and the person released: s 105.

6. [19]

   Accordingly, the first issue in the present case in relation to the time of arrest was whether Sergeant Pietruszka held a suspicion that the appellant had committed a sexual assault on the victim and whether he had reasonable grounds to hold the suspicion. The second issue was whether at the time of laying the charge he believed the appellant had committed the offence and had reasonable grounds for that belief. The third issue was whether subsequent events removed the basis for such a belief.

7. [20]

   In A v New South Wales [7] the High Court stated:

8. [21]

   In the present case, as in A v New South Wales, the outcome turned on the third and fourth elements. The State accepted that, if Sergeant Pietruszka acted maliciously and without reasonable and probable cause, he committed a wrong for which the State was vicariously liable. Those elements were further articulated in A v New South Wales as follows:

9. [22]

   There was another important distinction drawn in A v New South Wales in relation to proof of the absence of reasonable and probable cause.

10. [23]

    This was a case of the latter kind, namely a case in which proof of guilt would turn almost entirely upon by statements by third persons based on their contemporaneous perceptions of what happened on the evening in question.

Factual challenges on appeal

1. [24]

   Before dealing with each of the periods involved in the grounds of appeal, three broad observations should be made.

2. [25]

   First, the trial judge made findings favourable to Sergeant Pietruszka with respect to his evidence concerning his state of mind at various times. Given that Sergeant Pietruszka gave evidence, and was cross-examined by counsel for the appellant over several days, there were difficulties in challenging those findings. Indeed, of the eight grounds of appeal relevant to the finding of absence of liability, six related to the state of mind of Sergeant Pietruszka; the other two addressed the absence of reasonable and probable cause at the time the charges were laid and following the victim’s withdrawal of her allegation against the appellant.

3. [26]

   Secondly, much of the cross-examination of Sergeant Pietruszka was designed to demonstrate that he had acted improperly and vindictively towards the appellant in pursuing the criminal charges. However, such conduct was potentially capable of demonstrating that he had a firm view that the appellant was implicated in the undisputed sexual assaults. If there were some contrary explanation, it was neither explored in cross-examination, nor demonstrated by the evidence. That is, other than a belief in the legitimacy of the prosecution, there was no explanation as to why Sergeant Pietruszka should have acted with malice towards the appellant.

4. [27]

   It is of course plausible that a person who has embarked upon a particular course of conduct will find it difficult to desist when the basis for the original course falls away. However, such an explanation depends upon a degree of certainty at a particular point in time that the initial justification has fallen away, together with an unduly tardy recognition of that certainty. For reasons explained below, both those elements were missing in the present case.

5. [28]

   Thirdly, there were times when counsel’s challenge to the judgment under appeal slid into pejorative accusations against Sergeant Pietruszka expressed in terms which were not put to him in cross-examination, confrontational as parts of the cross-examination were. No doubt anxious to distinguish substance from rhetoric, the judge asked, in the course of oral argument, whether he was being asked to make a finding that Sergeant Pietruszka lied on his oath. [8] The response from senior counsel was, “Yes, definitely and frequently.” [9] The submission was flatly rejected and it is difficult to find a reasonable basis to challenge that rejection in the material before this Court.

6. [29]

   The grounds of appeal with respect to the lawfulness of the arrest, supported by the written submissions, got off on a false step: they were formulated entirely in terms of Sergeant Pietruszka’s belief, rather than his suspicion. The submissions were reworked in reply, once the problem was identified by the respondent.

7. [30]

   In oral argument, counsel for the appellant began with the concession that “there was at the start on Mr Pietruszka’s first acquaintance with this matter an adequate basis for suspicion on reasonable grounds.” [10] He clarified that he was referring to the time when Sergeant Pietruszka “first became aware of the incident early on the morning of 22 June 2015, and throughout that day where he interviewed the victim”. [11]

8. [31]

   Sergeant Pietruszka’s first contact was a telephone call from Detective Houldin who was one of two officers who had responded to the initial complaint by the victim. She told Sergeant Pietruszka that “[a] victim has been gang-raped by four persons. I am at the crime scene in Blacktown and all offenders are no longer here. There has been penile, oral and digital penetrations.” [12]

9. [32]

   It may be inferred that that was the first account given to police by the victim. Detective Houldin and her partner, Detective Singh, had searched the outside toilet and found the victim’s bra (minus a strap), hair extensions and underwear in the toilet waste bin. The missing bra strap was later found under the bathroom door. Sergeant Pietruszka identified the outside area as “littered with bottles that were predominantly various brands of alcohol spirits and there was evidence of vomit. [13] At a debriefing at Blacktown Police Station, Detective Houldin confirmed the victim’s account that “there were four males involved in the assault” and that she (the victim) had given the sexual assault counsellor exactly the same account. [14] Two other constables had attended the crime scene and spoken to the victim. Constable Bayzidi told Sergeant Pietruszka: [15]

10. [33]

    In a recorded interview conducted at the victim’s home, the victim gave the names of each of the men who were present, from which it is clear that she knew three of them better than she knew the appellant. She stated that she knew them as Loyd Bandao’s friends, continuing: [17]

11. [34]

    The police records indicated that the call to attend at the victim’s home was received at 11pm on the evening of 21 June.

12. [35]

    Detective Houldin also took a statement from Ms Tejada, who was interviewed by police on the morning after the attack. Ms Tejada was 17 years of age and was, on her own account, drunk and vomiting, both in the toilet and on the back lawn. Relevant parts of her account of 22 June read as follows:

13. [36]

    Although, when arrested, the appellant asserted that Ms Tejada would give him an alibi, the statement given to police on 22 June 2015 did not expressly support that claim. However, the statement did give some indication that the appellant and Ms Tejada were friends, so that he may have expected her to provide him with support.

14. [37]

    At about 7:40am on the morning of 22 June Sergeant Pietruszka and Detective Singh attended at the victim’s home and conducted a recorded interview in her bedroom. She gave a more detailed account than had been given some hours earlier when the police first spoke to her, but in most respects it was consistent with the earlier version, including her description that “at first it was just someone fondling like with fingers, and then like they all took turns. There was like four of them.” [19] She was asked if she remembered who put their penis inside her and identified BJ and Loyd. She was asked if she could name the other two people, and named James, though she did not know his family name, and said, “I don’t know one of them at all”. However, she had named him as Valentino in her first account to the police.

15. [38]

    At 11:20am the victim attended Blacktown Police Station and Sergeant Pietruszka conducted an interview with Detective Megan Oxley. When the interview came to the point of talking about the assault, Detective Oxley took over, Sergeant Pietruszka left the room and a second female detective senior constable took his place.

16. [39]

    The victim described the events when the men came into the toilet, stating: [20]

17. [40]

    Although most of the description related to the conduct of Loyd and BJ, she said she could “see and hear the other guys” and agreed that she could see James’ penis. She said, “I’m not sure about the other guy”, [21] referring to the applicant.

18. [41]

    It is clear that, although the victim was non-specific about the role played by the appellant, there was ample evidence upon which to base a suspicion that he was involved in the sexual assaults. With respect to the material resulting from the interviews on 22 June, so much appeared to be conceded.

19. [42]

    However, in oral submissions, counsel submitted that “things changed”, beginning with the interviews conducted at the victim’s home at 7:40am and at the police station at 11:20am. However, there was no basis in the later interviews to remove the reasonable grounds for the suspicion in relation to the appellant arising from the earlier material.

20. [43]

    Sergeant Pietruszka was cross-examined at some length as to the inferences he drew from the answers given by the victim in the recorded interviews on 22 June.

21. [44]

    The trial judge, in dealing with this material, found that Ms Tejada’s statement did not sustain a finding that Sergeant Pietruszka subsequently acted “without reasonable or probable cause”, nor did it support an inference that he acted with malice “in initiating, maintaining or continuing the prosecution”. [22] Although this language did not relate specifically to the formation of the suspicion in relation to the arrest, that may have been a reflection of the manner in which the case was presented. In any event, having considered the two records of interview with the victim, the judge noted:

22. [45]

    It may be that the appellant’s submissions at trial did not extend to challenging the fact that Sergeant Pietruszka formed the relevant suspicion, but only challenged the grounds for it, or that, at least by implication, the trial judge accepted that such a suspicion had been formed.

23. [46]

    The cross-examination of Sergeant Pietruszka then turned to the fact that the victim was immediately taken to the hospital so that standard sexual assault procedures could be followed. One purpose was to obtain DNA which might identify an assailant. Sergeant Pietruszka agreed that he did not think that the appellant had had penile intercourse with the victim, but did suspect that he had been involved in digital penetration. He accepted that a DNA match would be unlikely to provide useful information in that regard.

24. [47]

    The relevance of that cross-examination to his state of mind on and shortly after 22 June is by no means clear. However, the trial judge dealt with the cross-examination and submissions in this context. [23]

25. [48]

    The judge then moved to the cross-examination as to the charges laid against the appellant. [24] The judge concluded:

26. [49]

    Similar language was used in submissions to this Court. They were rejected by the primary judge. [25]

27. [50]

    It was not entirely clear whether the appellant relied on other events between 22 June and his arrest on 1 July as removing existing reasonable grounds for a suspicion of his involvement in the sexual assaults on the victim. As noted by the primary judge, Sergeant Pietruszka subsequently reviewed photographs of the crime scene and obtained, on 28 June, a written statement from Constable Boyd which recorded the earlier briefing she had supplied on 22 June. In that statement the appellant had been identified by the victim as “Valentino”. The judge noted that, although the victim did not identify the appellant by name in the recorded interviews, in all three records she described him in a manner which matched a photograph of the appellant obtained by Sergeant Pietruszka on 30 June 2015. [26]

28. [51]

    The other men at the party were arrested; Mr Bruce on 22 June, Mr Bandao on 25 June and Mr Alcazar on 29 June 2015. Mr Alcazar (and only he) participated in a recorded interview.

29. [52]

    Mr Alcazar confirmed the presence of the other men at the party on the evening of 21 June and that he had gone into the toilet cubicle whilst the victim was there. When asked to say “what had happened when you were in there”, he merely stated:

30. [53]

    On one view, this statement tended to confirm that part of the victim’s complaint which identified the appellant as one of those who had assaulted her in the toilet. On another view, it was neutral. The appellant contended that Mr Alcazar did not implicate him and to some extent “undermined” the victim’s account. The trial judge rejected that submission. [28]

31. [54]

    Having reviewed the evidence, the judge then formulated the issue with respect to the arrest in the following terms:

32. [55]

    The judge then summarised the material available to Sergeant Pietruszka, his knowledge derived from that material and concluded:

33. [56]

    In short, the trial judge was satisfied that the requirements of both limbs of s 99(1) (being pars (a) and (b)) were satisfied. [29] There was no challenge to the finding at [230] with respect to par (b).

34. [57]

    The focus of the appellant’s case in this respect involved a close reading of the language used by the victim in her recorded interviews and answers given by Sergeant Pietruszka in cross-examination. The substance of the submissions has already been addressed in considering those matters above. Although the grounds of appeal did not identify the precise language used by the trial judge in making findings, ground 1(a) (that, at the time of arrest, Sergeant Pietruszka, believed that the appellant had had sexual intercourse with the victim) should be understood as referring to digital penetration. That was Sergeant Pietruszka’s evidence. The judge made no finding that Sergeant Pietruszka had any suspicion that the appellant had had had penile intercourse with the victim. On that basis, there was no error in the finding as to Sergeant Pietruszka’s suspicion, nor was there any substance in the challenge to a finding that there were reasonable grounds for the suspicion. (The error in referring to what Sergeant Pietruszka “believed” might have been avoided had the grounds of appeal identified precisely the passages in the judgment which were being challenged.)

35. [58]

    A careful analysis of the precise language used by a witness in recounting events to the police, together with any changes in language and in content in later statements may provide valuable material for a cross-examiner in a criminal trial, seeking to raise a reasonable doubt as to the truthfulness of a complainant. The proposition underlying the appellant’s submissions was that Sergeant Pietruszka should have accepted the later material at face value and, in reliance upon that material, rejected the information supplied in the earlier statements. However, for the purpose of determining whether he held a suspicion sufficient to justify an arrest, he did not need to undertake such an exercise. It follows that the information in the earlier statements could form reasonable grounds to maintain the suspicion.

36. [59]

    Grounds 1(a) and (b) dealing with the lawfulness of the arrest, must be rejected.

37. [60]

    Four grounds of appeal challenged findings made by the trial judge in relation to this period of one night. The events of the day commenced with the arrest of the appellant at 11:30pm on the evening of Wednesday, 1 July 2015 at Blacktown railway station and the recorded interview conducted some two hours later.

38. [61]

    Two findings of fact were challenged, both relating to misinformation supplied by Sergeant Pietruszka to the appellant in the course of the interview. Each was relied upon by the appellant as demonstrating malice; the judge declined to draw that inference. Further, the misinformation was said to provide a basis for establishing that Sergeant Pietruszka had no probable and reasonable cause to charge the appellant, an event which occurred shortly after the interview, at about 2:10am on 2 July 2015.

39. [62]

    As to the events between the arrest of the appellant and the laying of charges, the trial judge had conflicting evidence from the appellant and Sergeant Pietruszka. In broad terms, he accepted the evidence of Sergeant Pietruszka and rejected that of the appellant. [30] On the appeal, no reliance was placed upon the evidence of the appellant. However, the appellant did say in his statement that, whilst under arrest and walking to the police station he had said to Sergeant Pietruszka:

40. [63]

    In responding to a particular in the statement of claim, Sergeant Pietruszka said in his statement that the appellant said to him at the railway station, “I have an alibi. I was in the yard with Trish. I will tell you everything.” [32] The judge provided reasons for accepting the evidence of Sergeant Pietruszka in preference to that of the appellant in the course of discussing respective aspects of the accounts given by each.

41. [64]

    The judge noted that Sergeant Pietruszka had examined the appellant’s phone and noted a Facebook message sent by Mr Bandao on the night of the sexual assault which read: “Come Yallah pussys gonna close.”

42. [65]

    An interview was conducted with the appellant that evening over approximately 40 minutes after the appellant indicated that he wished to hear the allegations against him. [33]

43. [66]

    The allegations put to the appellant in the course of the interview included the assertions that (i) when the victim was in the toilet vomiting, Alcazar and Bandao were in the bathroom and “were joined by it is alleged yourself and another person … James Bruce”; [34] (ii) Bandao and Alcazar indecently assaulted the victim and were assisted by the appellant and James Bruce; [35] (iii) the victim’s clothing was removed and she was digitally penetrated by various people including Bandao and Alcazar; [36] (iv) at this time, others in the room “yourself included had their penises exposed and were … masturbating”; [37] (v) after the digital penetration, Alcazar had penile intercourse with the victim; [38] (vi) Bandao then had penile vaginal intercourse, [39] and (vii) whilst these assaults were occurring, the appellant was “fondling her and grabbing her breasts and her vaginal area.” [40]

44. [67]

    The following exchange then took place after the appellant had indicated he understood the allegations:

45. [68]

    The appellant was advised that the victim was “not saying that you placed your penis in her vagina”. [41] The appellant inquired as to why the police needed his fingerprints because he didn’t touch her. [42] He was then asked to clarify that he was saying that he did not touch her and responded, “I didn't even see her there.” [43]

46. [69]

    When asked if he wished to present any evidence to the contrary of the allegations, he said “Trisha”. [44] Sergeant Pietruszka repeated that he had taken a statement from Ms Tejada and that “you are not included in that statement”. The appellant then asked: “So, can I ask her again?” Sergeant Pietruszka responded:

47. [70]

    The appellant then asked the officer to contact Mr Bandao’s father whom he said, “saw me taking care of Trisha.” [45] He also asked that they speak to Loyd’s sister. The interview continued:

48. [71]

    Sergeant Pietruszka then noted how the incident commenced and that Tejada had been vomiting in the toilet, Bandao had entered and removed her and “placed her on the grass where she continued to vomit.” He then asked:

49. [72]

    The appellant was then given an opportunity to ask further questions or “to speak freely.” The following exchange took place:

50. [73]

    Sergeant Pietruszka noted there had been some Facebook chat he had seen on the appellant’s phone, and asked on a number of occasions whether the appellant had spoken to the others in relation to the events of that night. The appellant agreed he heard “something about it” but otherwise did not respond. [46]

51. [74]

    All of the material set out above was addressed by the trial judge. [47] The judge then noted Sergeant Pietruszka’s evidence in chief as to the inferences he drew from this material:

52. [75]

    At trial, the appellant alleged that Sergeant Pietruszka knowingly made five misrepresentations which were said to be “very prejudicial to the plaintiff, and likely to produce fear and shake his confidence”. [48] In this Court, the focus was upon two matters, namely (i) the several statements that Ms Tejada had provided a statement which did not include reference to the appellant, and (ii) the representations that Mr Alcazar had not said he had been in the room with the appellant, but rather that the appellant had entered after he had left, and did not say that the appellant had stayed in the toilet for 15 minutes.

53. [76]

    In discussing reasonable and probable cause to lay charges, the judge referred, correctly, to the passage in the judgment in A v New South Wales at [80], which was in similar terms to [73], set out above. So far as the subjective element was concerned, it required the proof of a negative, which was dealt with by the trial judge in the following passage:

54. [77]

    Referring to the content of the recorded interview with the appellant, otherwise than dealing with the misrepresentations, the judge found:

55. [78]

    It was undoubtedly incorrect for Sergeant Pietruszka to describe Ms Tejada’s statement as not mentioning the appellant. She did mention him in the three paragraphs, the last of which was irrelevant, merely describing the time at which she went to sleep, namely after the appellant had left. [49] In paragraph 10 she had said that “James and the boys” came to the toilet, that “Loyd took me outside and I sat on the grass and I was vomiting there as well. My other friend, Valentino was looking after me.” She said that whilst she was sitting on the grass she thought that James was in the toilet and that the appellant and Alcazar were looking after her. She recalled Bandao saying he would take the victim home and “told Valentino to stay and look after me.” The evidence was imprecise, was inconsistent with statements made by the victim and was uninformative as to whether any sexual activity had taken place at all.

56. [79]

    Sergeant Pietruszka was cross-examined with respect to this material as follows: [50]

57. [80]

    The cross-examiner returned to the issue a little later, suggesting that by contradicting the appellant he was seeking to “put pressure on him”, “to destabilise him”, or at least “to have some effect on him”. He rejected the first two propositions and repeated in response to the third that he was presenting a “fact” and did not know what to expect. [51]

58. [81]

    At [306], the trial judge summarised in 10 subparagraphs the plaintiff’s submissions. The judge’s conclusions in respect of the misstatements is set out in the following passages:

59. [82]

    On appeal, the appellant submitted that, while recounting the various arguments made at trial, the judge concluded that Sergeant Pietruszka made a mistake at the time of the interview, but reached that conclusion “without any examination of how it was possible in the face of [the appellant’s submissions]”. [52] The appellant further relied upon Sergeant Pietruszka’s answer to the question in cross-examination, “So it wasn’t as though you had to stretch your memory about what was Trisha’s statement, was it?”, the answer being “No, sir, not at all.”

60. [83]

    Sergeant Pietruszka, in his second statement, denied that the representations to the appellant in the course of the recorded interview were deliberate lies. The trial judge accepted the denial. Neither the contextual evidence (being the circumstances surrounding the interview) nor Sergeant Pietruszka’s evidence under cross-examination provides any basis for interfering with what is patently a credit finding by the trial judge. In the language of Fox v Percy, [53] the judge’s conclusion was far from “glaringly improbable”, was not “contrary to compelling inferences”, nor was it inconsistent with any incontrovertible fact or uncontested testimony. Rather, the statement of Ms Tejada was lacking useful detail, was inconsistent with the victim’s evidence and may well not have been in the forefront of the officer’s mind when he was conducting the interview. The misrepresentations may have been careless and even inexcusable, but they did not carry the hallmark of deliberate misrepresentations. They were not corrected by Sergeant Mahony who had also been working on the investigation and was present at the interview. Had they been deliberate, it is most unlikely that Sergeant Pietruszka would have promised on several occasions to reinterview Ms Tejada, a step he in fact took the following day.

61. [84]

    The appellant submitted that the judge was in error in giving weight to Sergeant Pietruszka’s acceptance that he had made errors, in circumstances where the representations were patently erroneous. However, a witness may accept an obvious mistake in different ways. The credibility of the acceptance is very much a matter to be weighed by the trial judge who heard the evidence, in the context of how the witness dealt with many other challenges to his reliability and honesty. The appellant relied upon the failure of Sergeant Pietruszka to provide any explanation for the mistake. However, that fact does not necessarily demonstrate that the mistake was deliberate. He did not try to justify it. The appellant accused him, in other aspects of his evidence, of taking unrealistically extreme positions “to defend the indefensible.” [54] That could not have been said of this material.

62. [85]

    A reading of the transcript of Sergeant Pietruszka’s evidence provides no sufficient basis for rejecting the findings of the trial judge as to credibility: rather the contrary.

63. [86]

    The decision to dismiss this ground of appeal should not be understood as in any way endorsing or excusing the fact that Sergeant Pietruzska made an inaccurate statement to the appellant as to what Ms Tejada had said or, more accurately, what the Sergeant said Ms Tejada had not said about the appellant in the course of the interview with her. On any view, what Sergeant Pietruzska said was misleading. On the other hand, it did not result in the appellant making any inculpatory statement or admission as to his conduct, and it was not, as the primary judge held, a deliberate deceit but a mistake in his recollection.

64. [87]

    Ground 1(d) challenged the finding that Sergeant Pietruszka was honestly mistaken in misrepresenting information supplied by Mr Alcazar. However, the representations were less clearly wrong and were, in some respects, quite equivocal.

65. [88]

    Mr Alcazar was interviewed on the evening of 29 June 2015 by Detective Houldin and Detective Jorgenson. His interview, including the formal parts, ran to 445 questions. He was asked if he went into the toilet cubicle while the victim was there and said “Yeah”. [55] He was asked what happened when he was in there as said: [56]

66. [89]

    There followed a number of specific questions relating to what happened in the toilet to which he either answered that he did not know, or “nothing”, or denied the allegations. Some questions later, the following exchange took place:

67. [90]

    Mr Alcazar denied further allegations as to what he had done in the toilet and denied that he could see what was happening. The questioning continued:

68. [91]

    The supposed misrepresentations as to what Mr Alcazar had said were not clearly incorrect. Mr Alcazar had first said, “All the boys were in there”, and then had said that Valentino was not in there until later. As to the timing, Mr Alcazar said in the second stage of the questioning set out above that the appellant went into the toilet when he came out and that he (Alcazar) stayed outside for some 15 minutes. On the assumption that he was saying that the appellant entered the toilet when he (Alcazar) left the toilet, and suggested that they were all still there in the toilet when he left the premises, that placed the appellant in the toilet cubicle for some 15 minutes.

69. [92]

    The trial judge dealt with these representations briefly, noting that Sergeant Pietruszka had accepted that an error was made, but upheld the State’s submission that the point “goes nowhere”. [57] The judge further accepted that, with respect to “those conceded errors” he was not satisfied that they sustained the allegation of malice or suggested that Sergeant Pietruszka was knowingly acting without reasonable and probable cause. He described the plaintiff’s reliance upon those matters as carrying “little weight.” [58]

70. [93]

    The challenge to these findings on appeal was somewhat muted, which was understandable. Ground 1(d) must be rejected.

71. [94]

    The trial judge also had regard in relation to the charging of the appellant to the “Fact Sheet” prepared by Sergeant Pietruszka on the morning of 2 July 2015 setting out material to be placed before the court in support of the charges. As the judge noted, the appellant contended that the Fact Sheet contained “untrue statements”, which were intended “to show that the plaintiff was in fact guilty of the charges.” [59] If Sergeant Pietruszka believed the statements made in the Fact Sheet, they provided probable cause for the charges. For the reasons set out above, the appellant’s challenges to his state of mind were rejected by the trial judge and those rejections have not been shown to be erroneous. It follows that ground 1(e) and (f) must be rejected. The case for the appellant involving unlawful arrest was properly dismissed, as was the case of malicious prosecution up to the point at which the appellant was charged.

72. [95]

    Following the charging of the appellant, the custody manager at Blacktown Police Station refused bail. Later that morning the appellant appeared before a magistrate at Parramatta Local Court, bail again being refused.

73. [96]

    Sergeant Pietruszka stated that, when laying charges, he ticked a box on the system indicating that the matter was for the Director of Public Prosecutions. On 9 July 2015 an officer of the Director appeared for the prosecutor at that mention in the Local Court. [60] It may be accepted, however, that Sergeant Pietruszka continued to have a significant role to play in the prosecution of the charges for some weeks after 2 July.

74. [97]

    On the evening of 2 July, and consistently with his undertaking to the appellant, Sergeant Pietruszka conducted a further interview with Ms Tejada. The further interview with Ms Tejada did not take matters much further and was not given weight on the appeal. There were reasons why it did not assist a claim of malice.

75. [98]

    Sergeant Pietruszka’s understanding of Ms Tejada’s second statement was explained in the course of re-examination. First, his attention was drawn to part of the statement in which she said, “I remember still that I was like the one sitting down on the ground because I was like, I was intoxicated. Also I remember that my friend, Valentino and Loyd was looking after me.” [61] Sergeant Pietruszka said that he had an inconsistent statement from Mr Alcazar which placed Loyd in the bathroom participating in the sexual assaults. He therefore had reservations about Ms Tejada’s evidence. [62] He also had reservations based on the fact that she was focusing on “the person, Bruce, as being a particular offender and not the involvement of the other parties.” Further, she was in a relationship with Loyd at the time of the incident and “made it known that she did not like the person, Bruce who was older and hanging out with the younger crowd.” He considered she was being protective of Loyd. [63]

76. [99]

    The following afternoon, namely Friday 3 July, Detective Houldin conducted a further interview with the victim. Ground 1(g) noted that the victim withdrew her allegation against the appellant in her further statement on 3 July. The appellant alleged that to the extent that Sergeant Pietruszka had, prior to the taking of that statement, reasonable and probable cause to lay and maintain the charges, thereafter he did not. The further interview between Detective Houldin and the victim was therefore significant.

77. [100]

    In interviewing the victim on 3 July 2015, Detective Houldin directed the victim’s attention to the last time, on the evening of 22 June, that she last remembered seeing the appellant. She said it was “right before I got into the bathroom.” [64] She was asked if she remembered seeing him in the bathroom and said, “No, no.” [65] She also denied that there were more than three persons, including herself, in the bathroom at any one time. [66]

78. [101]

    In his evidentiary statement, Sergeant Pietruszka said:

79. [102]

    In cross-examination counsel for Mr Hrdavec suggested to Sergeant Pietruszka: [67]

80. [103]

    All of this material was set out by the trial judge. [68] The judge noted the submission that Sergeant Pietruszka’s evidence was “an invention designed to provide a desperate defence to the indefensible”, and that Sergeant Pietruszka “did not subjectively have reasonable and probable cause.” [69] The trial judge dealt with the submission briefly at that point, stating:

81. [104]

    Although the appellant suggested that the judge had either not dealt with the issue raised in his reasons, or had given no reasons for rejecting it, it is clear from this last passage that the judge accepted the Sergeant’s explanation as to his state of mind following the further statement obtained from the victim. That finding was briefly stated because the judge then proceeded to consider the evidence of the steps taken by Sergeant Pietruszka immediately following receipt of the statement from the victim.

82. [105]

    Sergeant Pietruszka did not conduct the interview with the victim, but agreed that he would have been sent the statement by Detective Houldin. The statement was taken on a Friday afternoon; Sergeant Pietruszka gave evidence that he did not believe he was on duty that afternoon, nor the following weekend. He believed he obtained a copy of the statement and read it either on Monday 6 July or Tuesday 7 July. There was no submission that that evidence should not have been accepted.

83. [106]

    On 7 July Sergeant Pietruszka said he communicated the views set out above, namely that the prosecution case had been considerably weakened and that bail should not be opposed, both to the barrister representing the appellant, Mr Linegar, and to an officer of the Director. As the Sergeant knew, the matter was to be mentioned in the Local Court on 9 July. There was no application for bail, but the Sergeant said, “I do not know why he [Mr Linegar] did not [apply for bail].” [70]

84. [107]

    The full text of the email to Mr Linegar was set out by the trial judge and was in the following terms:

85. [108]

    At trial, counsel for the appellant submitted that the communication with Mr Linegar was not a full and frank account of what the victim had said, and did not expressly state that the Director would not oppose bail.

86. [109]

    Sergeant Pietruszka was cross-examined to the effect that several aspects of the email to Mr Linegar were misleading, namely that it was misleading to say that (i) the victim “cannot confirm” if the appellant was in the room, in circumstances where she said he was not, and (ii) he would “raise this with the prosecutors” should a bail application be made, in circumstances where, in his view, a bail application should not be opposed. It was put to him that he did not say that in so many words. The rest of the email set out his understanding of the evidence, but did not, as the cross-examiner noted, say what evidence had been obtained from which co-accused. Sergeant Pietruszka rejected the submission that he was misleading Mr Linegar and said that the last sentence, stating that the complainant, “now cannot recall if your client was present when this offence occurred”, and stating that the Court would be made aware of it, was a sufficient indication that bail would not be opposed. He accepted that what Mr Linegar knew was “not something I was thinking about at the time.” [71]

87. [110]

    At trial, counsel for the appellant submitted that the communication with Mr Linegar was not a full and frank account of what the victim had said, and did not expressly state that the Director would not oppose bail. It demonstrated malice.

88. [111]

    The judge accepted that the email did not expressly state that Sergeant Pietruszka would not oppose bail, but considered it “implicit on the face of the email”. [72] The judge did not accept that the email sent by Sergeant Pietruszka sustained a finding of malice; [73] not only was that conclusion consistent with the face of the communication and its content, but it was an entirely reasonable inference to draw in the circumstances. Had a bail application been made, it is likely that it would have been granted and the appellant released from custody. There was no basis for a finding, or even an inference, that the bail application was not made because of the content of the email. Far less could it be inferred that Sergeant Pietruszka was intending to discourage the making of a bail application.

89. [112]

    The appellant’s assertion as to the existence of malice was and is strongly negatived by the final sentence of the email reproduced at [107] above which is also entirely consistent with the terms of Sergeant Pietruszka’s evidence as to his telephone conversation with the representative of the Director on the day on which the email was sent. That conversation, the terms of which are extracted at [101] above, and, in particular Sergeant Pietruszka’s advice to the representative of the Director that “bail should not be opposed” is quite inconsistent with the allegation of malice.

90. [113]

    In re-examination, Sergeant Pietruszka indicated that he was liaising with the Office of the Director throughout the period from 1 July until 31 October 2015. [74] He understood that an officer of the Director would appear on the bail application for the prosecution. [75] It seems unlikely in such circumstances that the police officer in charge of the investigation would make explicit representations to the barrister for an accused as to how the Director would deal with the bail application.

91. [114]

    There was no substance in the allegation that, between 3 July and 10 July, any step taken by Sergeant Pietruszka evidenced malice or lack of reasonable and probable cause in the relevant sense. The appellant’s submissions in relation to this period must be rejected. Ground 1(g) and (h) must be rejected.

Conclusions and orders

1. [115]

   The rejection of ground 1(a)-(h) disposes of the appeal with respect to liability. Grounds 1(i) and (j), together with ground 2, related to the assessment of damages. Those issues do not arise.

2. [116]

   The Court should make the following orders:

   1. (1)

      To the extent necessary, grant the appellant leave to appeal from the judgment of Walton J given on 18 May 2021 and the orders entered on 16 June 2021.

   2. (2)

      Dismiss the appeal.

   3. (3)

      Order that the appellant pay the respondent’s costs in this Court.